Observations and provocations from The Times' Opinion staff

The fate of the Twinkie -- financially, legally, deliciously

January 17, 2012 | 12:15
pm

Could it be RIP for the Twinkie, that mainstay of cultural jokes and teen diets?

Hostess has filed for bankruptcy, again, and who knows whether the snack company's survival has a Sno-Ball's (cream-filled cake with pink frosting and coconut flakes)] chance in h-e-double-hockey-sticks, as Mitt Romney would say.

Hostess makes HoHos and Twinkies and "old school" cupcakes with ingredients that read like Margaret Thatcher's homework; Thatcher studied chemistry and was a research chemist before going into politics, and she helped to develop emulsifiers for ice cream, though I don't expect Meryl Streep spent a lot of time at the soft-serve machine prepping for "The Iron Lady."

If Twinkies do vanish from the snack shelves, we should remember that they still have a place in California jurisprudence.

After former San Francisco Supervisor Dan White shot and killed Mayor George Moscone and Supervisor Harvey Milk in 1978, he was convicted of manslaughter rather than murder, and faced less than eight months in prison rather than the death penalty, in part because of what became known as the "Twinkie defense."

Popular culture has wrongly reduced the Twinkie defense to the notion that eating Twinkies makes you go crazy and do things like shoot people. But in point of fact, the real Twinkie defense was the evidence that White -- a fitness buff and former athlete, a devotee of nutrition -- got so depressed that he'd stoop to pigging out on sugar, candy, sodas and junk food (Twinkies and their ilk), and that that exacerbated his depression.

It fit into his lawyers' case that all of that was evidence of mental illness, which meant that White couldn't have maliciously premeditated the killings –- and therefore could not be prosecuted for murder, only for voluntary manslaughter. The jury agreed. (White committed suicide less than two years after he was released from prison.)

The Twinkie defense shorthand so outraged Californians that voters and legislators limited the "diminished capacity" courtroom arguments -- the range of psychiatric considerations under which White's case was defended -- and replaced it with the idea of "diminished actuality." In Sacramento, one unhappy legislator even reportedly waved a Twinkie in the air to illustrate his point.

The Twinkie defense even reached the U.S. Supreme Court -- not as a case but during an argument in a 2006 case, United States v. Gonzalez-Lopez, during which Justice Antonin Scalia, talking about the right to counsel, declared: "I don’t want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Jurisprudence aside, whatever perils the cupcake genre poses to those who eat them, the TSA in Las Vegas found last month that a cupcake-in-a-jar might be a threat to national security: agents confiscated a containerized cupcake a woman was carrying onto her flight. The TSA pointed out that your standard-issue off-the-shelf cupcake was fine but that a cupcake sealed in a jar constituted a gel.